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Conservation easements can prove tricky as preservation tools

Status change may be ahead for plots producing for nearly a century

By Amy Bounds Camera Staff Writer

Posted:
07/06/2013 01:00:00 PM MDT

Updated:
07/06/2013 02:03:58 PM MDT

Deborah Brunson works in the community garden at Long's Gardens on Wednesday.
The City of Boulder is considering buying a conservation easement to preserve the land at Long's Gardens, which includes Growing Gardens.
(CLIFF GRASSMICK)

Terms: Five building sites were extinguished and the Joders retained four building sites with significant restrictions related to location and size. The Joders also retained the right to continue their horse boarding facility.

Conservation goals: Visual corridor along U.S. 36, wildlife habitat, agricultural land and buffer land to several hundred acres of open space property.

Hogan Ranch in Jefferson County

Acres: 500

Purchase price: $10 million (joint with Boulder County)

Purchase date: 2007

Terms: The easement removed most of the development potential, including 295 homes plus a 60 acre industrial site. The easement allowed the Hogans to build a home in each of five identified residential sites and to build an equestrian center.

Conservation goals: The visual corridor along Colo. 93, wildlife habitat, agricultural land and buffer land to several thousand acres of open space property.

Hayes property

Acres: 160

Purchase price: $407,000

Purchase date: 1992

Terms: Two building sites were extinguished and the Hayes family retained two, five-acre building sites. Open Space and the Hayes family also negotiated a Wildlife Preservation Area.

Conservation goals: The visual corridor along the Greenbelt Plateau trail, wildlife habitat, agricultural land and buffer land to several hundred acres of open space property.

Terms: Three building sites were extinguished and the Shanahan family retained two building sites. A golf course that was proposed for the property at the time was eliminated. The Shanahan family also donated land for a trail.

Conservation goals: The visual corridor along Colo. 93, wildlife habitat, agricultural land, including ranch facilities, and buffer land to several hundred acres of open space property. The land is just west of Colo. 93 and south of Fairview High School.

The Boulder City Council recently directed staff members to reopen negotiations with the Long family to buy a conservation easement that would protect the 25-acre Long's Gardens from development.

The city has been talking for years about preserving the property, where bulbs and flowers have been grown for almost a century and where community-run Growing Gardens provides garden plots. Talks got more serious a couple of years ago, with a tentative agreement for a $4.8 million easement reached in 2011. But negotiations were derailed by the high price and other concerns.

Now, the council is again discussing the easement as part of its long-term open space acquisition plan.

While council members generally agreed that preserving the city's 97-year-old urban farm on North Broadway is a good idea, several members raised concerns about using a conservation easement.

Boulder city attorney Tom Carr said conservation easements, which are perpetual and continue when a property is sold, have to be carefully written so that there aren't future questions on what's allowed and what's not. While the city and the current owner may agree, a new owner may have a much different idea about what the agreement means.

"We want to write them so that, 30 years from now, it's clear that this is what's allowed," he said.

Shanahan Ranch offered city lessons

In the past, Carr said, some conservation easements had "language that was not as specific as you would hope."

Council members brought up Shanahan Ranch as an example of a conservation easement that wasn't ideal. The city first bought development rights in 1985 and then a conservation easement in 1991, with the family retaining two building sites.

The city offered to buy the 178-acre property in south Boulder for $6.6 million in 1998. The Shanahans agreed, but the City Council nixed the deal, citing uncertainty in the broader economy. The Shanahans have since put the property up for sale for $8.9 million.

In 2008, city officials said they were concerned that if the property "with its remaining development potential" were to be sold to private parties, the agricultural viability would be hindered.

"As a general rule, the old development rights agreements were not nearly as detailed, specific or sophisticated," Open Space and Mountain Parks officials wrote in a 2008 City Council agenda. "Consequently, the interpretation by a court of this development rights agreement would be more uncertain."

The 1985 agreement limited development to two home sites -- one size-restricted and the other unrestricted -- within a 4-acre building envelope and various agricultural buildings in a 60-acre parcel on the northern portion of the property.

Another challenge is that conservation easements limit development, but typically don't restrict a site to a specific use, like a community garden. For both community supporters and Boulder City Council members, maintaining the agricultural and educational uses of the site is key.

"You can tell them not to build houses, but you can't tell them to grow a garden there," said Carr, the city attorney.

Family sees conservation easement as best option

Mayor Matt Appelbaum said at a recent meeting that he would like to buy the property outright, but the Long family isn't interested in selling.

Open Space Director Mike Patton said it's possible that a conservation easement could require a long-term arrangement with Growing Gardens, as well as dictating that the water rights can't be sold and limiting it to agricultural uses.

The property is zoned for agricultural use, which allows one house to be built on every five acres.

Catherine Long, who owns the property along with her sister and a contingent of out-of-state cousins, said she sees a conservation easement as the best tool to maintain the site's agricultural use.

If the city bought the land outright, she said, a future council or city administration could decide that the property would be better used for housing. If the family sold the property without a conservation easement, a developer could build four "mega-mansions" without petitioning to change the zoning.

"I would hate to see that happen after all these years of managing to keep it open," she said.

She said one issue that was raised in previous talks with the city was allowing Growing Gardens to build more structures -- a bathroom, classroom space and space to wash, can and dry produce. Most of the agricultural property in the area is big fields with non-intensive uses. Her property, she said, is used more intensively and needs more infrastructure.

"We're a little bit odd, and we don't fit very well," she said. "That's been a challenge."

She said neither she nor her sister have children, so there's no fourth generation to take over.

"In recent years, I've come to view Growing Gardens and now Mountain Flower Dairy as the fourth generation," she said. "We're very committed to trying to push a conservation easement through."

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